Robinson v. Secretary of State for Northern Ireland and Others, (2002)

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Robinson v. Secretary of State for Northern Ireland and Others, (2002)

HOUSE OF LORDS

Lord Bingham of Cornhill Lord Hoffmann Lord Hutton Lord Hobhouse of Wood-borough Lord Millett

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

ROBINSON

(APPELLANT)

v

SECRETARY OF STATE FOR NORTHERN IRELAND AND OTHERS

(RESPONDENTS)

(NORTHERN IRELAND)

ON 25 JULY 2002

[2002] UKHL 32

LORD BINGHAM OF CORNHILL

My Lords,

1. The issue in this appeal is whether the election by the Northern Ireland Assembly of a First Minister and Deputy First Minister on 6 November 2001, more than six weeks after the restoration of devolved government in Northern Ireland on 23 September 2001, was legally valid.

2. For half a century Northern Ireland enjoyed devolved government under the Government of Ireland Act 1920. Under that Act elections were held and governments formed on straightforward majoritarian principles. Since, throughout the period, supporters of one (unionist) party were numerically superior, that party dominated the government with the effective exclusion of minority (in particular, nationalist) parties from any share in the exercise of power. In 1972 (for reasons which the House need not examine in this appeal) devolved government was suspended. After some trials and much tribulation, agreement on the future government of Northern Ireland was eventually reached at multi-party talks. The effect of this agreement (known as the Belfast Agreement) was set out in a command paper (Cm 3883) presented to Parliament in April 1998. The object of the Belfast Agreement was to achieve "reconciliation, tolerance and mutual trust" and "the protection and vindication of the human rights of all" (Declaration of Support, para 2). The parties committed themselves to "partnership, equality and mutual respect" (ibid, para 3). They also pledged themselves in good faith to work to ensure the success of the arrangements to be established under the Agreement (ibid, para 5). A new Assembly, operating where appropriate on a cross-community basis, was to be the prime source of authority in respect of all devolved responsibilities (Strand One, para 4).

3. The Northern Ireland Act 1998 was enacted to implement the Belfast Agreement, as the long title to the Act and section 3(1) make clear. The purpose of the Act (so far as relevant to this appeal) is to provide for the restoration of devolved government in Northern Ireland but on a basis significantly different from that provided under the 1920 Act. There is to be a new Northern Ireland Assembly. There are also to be a First Minister and Deputy First Minister ("FM" and "DFM"). And there are to be up to ten Ministers, acting as the political heads of Northern Ireland departments. But in respect of each of these key elements the Act provides mechanisms to prevent the exercise of power by either of the two main communities, unionist and nationalist, to the exclusion of the other. Thus members of the Assembly are to be elected on a single transferable vote (section 34(2)), to ensure proportionate representation of differing political opinions. Ministerial offices are to be allocated according to a formula set out in section 18, the object of which is to relate the number of offices held and the choice of offices to the number of seats held in the Assembly. Similar safeguards are contained in the provisions of section 16 governing the important offices of FM and DFM which, since they lie at the heart of this appeal, should be cited in full:

"(1)  Each Assembly shall, within a period of six weeks beginning with its first meeting, elect from among its members the First Minister and the deputy First Minister.

(2)  Each candidate for either office must stand for election jointly with a candidate for the other office.

(3)  Two candidates standing jointly shall not be elected to the two offices without the support of a majority of the members voting in the election, a majority of the designated Nationalists voting and a majority of the designated Unionists voting.

(4)  The First Minister and the deputy First Minister -

(a) shall not take up office until each of them has affirmed the terms of the pledge of office; and

(b) subject to the provisions of this Part, shall hold office until the conclusion of the next election for First Minister and deputy First Minister.

(5) The holder of the office of First Minister or deputy First Minister may by notice in writing to the Presiding Officer designate a Northern Ireland Minister to exercise the functions of that office -

(a) during any absence or incapacity of the holder; or

(b) during any vacancy in that office arising otherwise than under subsection (7)(a);

but a person shall not have power to act by virtue of

paragraph (a) for a continuous period exceeding 6 week...

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